Appellate judge says high court got “off track” decades ago

The U.S. Supreme Court “went fundamentally off the track” in the late 1950s and 60s with its rulings on obscenity and crime and punishment, a federal appellate judge told Law Center students.

Nine men on the high court bench decided “a little porn is not bad for people,” said Edith H. Jones, chief judge of the U.S. 5th Circuit Court of Appeals. The court took off all the restraints and, in effect, gave everyone the right to indulge in any sort of conduct, she said during the lunch hour presentation sponsored by The Federalist Society. The Supreme Court interpreted the 1st Amendment in a way that had never been done before, said Jones who was nominated for the appellate bench by President Reagan and confirmed in 1985. The court’s decisions, she said, allowed pornography to proliferate, victimizing countless young women and children. She said she is not blaming the court entirely for a declining sense of morality over the decades, but noted that the most prurient material available to young boys in the 1940s was National Geographic.

The “font of judicial activism,” Jones said, came in the 1960s when criminals were seen as “victims of society” due to socio-economic factors, family background and segregation. The high court felt it had to protect these people and issued rulings dealing with evidence, testimony, habeas corpus, suspects’ rights (Miranda) and others to the extent that convictions were hard to come by, she said. “We had a crime wave.” The fallout has long since become a reliable subject for political demagoguery: “Who’s tougher on crime?” And has encouraged criminals to try to beat the odds by “gaming the system,” she said. “The Court could have restrained the abuses without turning over the whole criminal system,” she said. Besides, she said, the proper places to effect change are the legislative and executive branches, not the judiciary.

Jones noted at the beginning of her talk that Alexander Hamilton called the judiciary the “least dangerous” branch of government precisely because its only role was to judge given the confines of the Constitution. She concluded by saying she didn’t think the founders would support the intrusion of the courts into such areas today as gay marriages, adoptions and battlefield Miranda warnings.